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Augustine v. State (7/24/2015) ap-2464

Augustine v. State (7/24/2015) ap-2464

                                                                                      NOTICE
  

               The text          of   this opinion can be corrected before the opinion is published in the                                     

              Pacific Reporter                 .   Readers are encouraged to bring typographical or other formal                                       

               errors to the attention of the Clerk of the Appellate Courts:    



                                                        303 K Street, Anchorage, Alaska  99501  

                                                                          Fax:  (907) 264-0878  

                                                             E-mail:  corrections@ akcourts.us  



                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                             



ARTHUR  J.  AUGUSTINE,  

                                                                                                                                                            

                                                                                                               Court of Appeals No. A-11614  

                                                                                                                                                                          

                                                          Appellant,                                         Trial Court No. 4FA-12-482 CR  



                                            v.  

                                                                                                                             O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                          Appellee.                                                No.  2464  -  July  24,  2015  



                             A                                                                                                              

                                ppeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                                                                                                    

                             Fairbanks, Michael P. McConahy, Judge.  



                                                                                                                                              

                             Appearances:   Susan Orlansky, Feldman Orlansky & Sanders,  

                                                                                                                                             

                             Anchorage, for the  Appellant.   Tamara E. de Lucia, Assistant  

                                                                                                                                               

                             Attorney General, Office of Special Prosecutions and Appeals,  

                                                                                                                                                 

                             Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                                                                  

                             for the Appellee.  



                                                                                                                                              

                             Before:              Mannheimer,  Chief  Judge,  and Allard and Kossler,  

                                              

                             Judges.  



                                                                                                                                         

                             Judge  MANNHEIMER,  writing for  the  Court  and concurring  

                             separately.  



                             Arthur             J.     Augustine                 was          convicted                of       sexually              abusing             his       two  



granddaughters.   The State's evidence against Augustine was based almost completely                                                                                 



on the out-of-court statements of the two children, which were conveyed                                                                                             to the jury     


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through video-recorded interviews of the children, as well as the hearsay testimony of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 other adults.                                                                           



                                                                                              The   trial judge                                                                                                  admitted   the   children's   recorded   interviews   under   the  



provisions   of   Alaska   Evidence   Rule   801(d)(3).     Evidence   Rule   801   defines   what  



 evidence is hearsay, and section (d)(3) of this rule declares that the recorded pre-trial                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



 statement of a crime victim is exempted                                                                                                                                                                                                                                                      from   the hearsay rule if the victim is under                                                                                                                                                                                                                                   



  16 years old and if the statement was taken under circumstances that satisfy the eight                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 criteria listed in subsections (d)(3)(A) - (H).                                                                                                                                                                                                                                                                   



                                                                                             Most of the eight listed criteria concern factual issues, such as whether the                                                                                                                                                                                                                                                                                                                                                                                                                         



 interview with the victim was conducted before the proceeding, and whether the victim's                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 statement was recorded in a format that preserves both the audio and video components                                                                                                                                                                                                                                                                                                                                                                                                                                              



 of the statement.                                                                                                    But two of the criteria - (d)(3)(F) and (d)(3)(H) - explicitly require                                                                                                                                                                                                                                                                                                                                                                           



the trial judge to exercise judgement after evaluating the entirety of the circumstances                                                                                                                                                                                                                                                                                                                                                                                                                            



 surrounding the victim's statement.                                                                                                                                      



                                                                                             Under subsection (d)(3)(F), the State must prove that "the taking of the                                                                                                                                                                                                                                                                                                                                                                                                                             



 statement as a whole was conducted in a manner that would avoid undue influence [on]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



the victim".                                                                      And under subsection (d)(3)(H), the judge must additionally "determine that                                                                                                                                                                                                                                                                                                                                                                                                                                 



 it is sufficiently reliable and trustworthy", and that "the interests of justice are best served                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



by admitting the recording [of the statement] into evidence."                                                                                                                                                                                                                                                                                                                                                                         



                                                                                              In the present case, we conclude that the trial judge failed to hold the State                                                                                                                                                                                                                                                                                                                                                                                                         



to its burden of proof under subsection (d)(3)(F), and that the trial judge failed to fulfill                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



his role as evidentiary gatekeeper under subsection (d)(3)(H).                                                                                                                                                                                                                                                                                                                                                                       We therefore remand this                                                                                                                                   



 case to the superior court for reconsideration of whether the children's out-of-court                                                                                                                                                                                                                                                                                                                                                                                                                                           



 statements should have been admitted.                                                                                                                                                                                                                                                



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                                     The evidentiary rule at issue in this case: Alaska Evidence Rule 801(d)(3)                                                                                                                                                                                                                                                                               



                                                                         Alaska   Evidence   Rules   801   and   802   contain   the   basic   rules   governing  



hearsay   evidence.     As   defined   by   the   combination   of   sections   (a),   (b),   and   (c)   of  



Evidence Rule 801,                                                                                                "hearsay" evidence is any evidence that a person has made an                                                                                                                                                                                                                                                                                         



 assertion outside of court (                                                                                                           i.e., other than while testifying at the current trial or hearing),                                                                                                                                                                                                                          



if the evidence of this assertion is being offered to prove that the assertion is true.                                                                                                                                                                                                                                                                                                                                                                     



                                                                         Under Evidence Rule 802, hearsay evidence is not admissible unless there                                                                                                                                                                                                                                                                                                         



is a provision of law that expressly authorizes its admission.                                                                                                                                                                                                                                                                       



                                                                         The concluding section of Evidence Rule 801 - section (d) - is such a                                                                                                                                                                                                                                                                                                                                  



provision.   Evidence Rule 801(d) contains a list of certain types of evidence that are                                                                                                                                                                                                                                                                                                                                                                            



 excluded from the definition of "hearsay", even though the evidence fits the definition                                                                                                                                                                                                                                                                                                                                          



 of hearsay found in sections (a), (b), and (c) of the rule.                                                                                                                                                                                                                                                      



                                                                         The present appeal focuses on one of these exceptions - the one codified                                                                                                                                                                                                                                                                                         



in Evidence Rule 801(d)(3).                                                                                                                                



                                                                         Evidence Rule 801(d)(3) authorizes the admission of certain out-of-court                                                                                                                                                                                                                                                                  



 statements   made   by   children   who   are   alleged   to   be   the   victims   of   a   crime.     More  



 specifically,   Rule   801(d)(3)   provides   that   a   child's   out-of-court   statement   can   be  



 admitted into evidence                                                                                                          if   the   child is less than 16 years of age, if the statement was                                                                                                                                                                                                                                                           



recorded, and if the proponent of the evidence establishes the                                                                                                                                                                                                                                                                                         following foundational   



matters:   



                                                                           

                                                                                                              (A)  the recording was made before the proceeding [at                                                                                                                                                                                                                            

                                                                         which it is being offered];                                                              



                                                                                                              (B)  the victim is available for cross-examination;                                                                                                            



                                                                                                              (C)  the prosecutor and any attorney representing the                                                                                                                                                                                                                         

                                                                         defendant were not present when the statement was taken;                                                                                                                                                                                                                                    



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                                (D)  the recording is on videotape or other format that                          

                      records    both    the    visual    and    aural    components    of    the  

                      statement;  



                                                                                                                  

                                (E) each person who participated in the taking of the  

                                                                      

                      statement is identified on the recording;  



                                                                                                                

                                (F)  the  taking  of  the  statement  as  a  whole  was  

                                                                                                                   

                      conducted in a manner that would avoid undue influence of  

                            

                      the victim;  



                                                                                                     

                                (G)  the  defense  has  been  provided  a  reasonable  

                                                                                                                 

                      opportunity to view the recording before the proceeding; and  



                                                                                                                 

                                (H)  the  court  has  had  an  opportunity  to  view  the  

                                                                                                                

                      recording and  determine  that  it  is  sufficiently  reliable  and  

                                                                                                                   

                      trustworthy and that the interests of justice are best served by  

                                                                                    

                      admitting the recording into evidence.  



                                                                                                                                  

                      In  this appeal,  we are required to interpret a trial judge's duties under  



                                                            

subsections (F) and (H) of this rule.  



                               

           Underlying facts  



                                                                                                                                        

                      In February 2012, seven-year-old M.Y. was in school, working on an art  



                                                                                                                                       

project.  She told a teacher's aide that she was making the project for her mother and her  



                                                                                                                              

grandmother, but not for her grandfather (i.e., Augustine). M.Y. then asked the teacher's  



                                                                                                                                     

aide, "Do you know why I don't want to make this [project] for my grandpa?" - and,  



                                                                                                                               

when the aide remained silent, M.Y. answered her own question, "Because my grandpa  



                        

touches me."  



                                                                                                                                      

                      The teacher's aide reported this conversation to M.Y.'s teacher, who in turn  



                                                                                                                                  

reported the conversation to the school counselor, Karin Gillis.  Gillis interviewed M.Y.,  



                                                                  -  4 -                                                            2464
  


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 and during this interview M.Y. told Gillis (by pointing to a picture) that her grandfather                                                                                                                                                                                                                                                                                                       



 had touched her genitals.                                                                                                          



                                                                      Gillis reported this matter to the Office of Children's                                                                                                                                                                                                                                   Services,   and the   



 Office of Children's Services notified the State Troopers.                                                                                                                                                                                                                                              Investigator Yvonne Howell                                                                                     



 was assigned to the case.                                                                                                          



                                                                      Investigator Howell contacted                                                                                                                               M.Y.'s mother, Tonia Clah, and told her                                                                                                                                                                  



 about the report of possible sexual abuse.                                                                                                                                                                     This was the first time that Clah heard of these                                                                                                                                                                  



 allegations.   Clah told Howell that M.Y.'s "grandpa" was Augustine (and that Augustine                                                                                                                                                                                                                                                                                                                  



 was not M.Y.'s biological grandfather, but rather the stepfather of Clah's husband).                                                                                                                                                                                                                                                                                                                                                            



                                                                      Howell asked Clah not to speak to Augustine about these allegations until                                                                                                                                                                                                                                                                                      



 Howell had conducted further investigation.                                                                                                                                                                                             However,   Howell   did   not ask Clah to                                                                                                                                                              



 refrain from speaking to her daughter.                                                                                                           



                                                                      That night, Clah sat down with M.Y. and questioned her.                                                                                                                                                                                                                                                        Clah   warned  



 M.Y.  that she could not lie about what had happened between her and her grandfather                                                                                                                                                                                                                                                                                                            



 -  because, if she did, God would put a "hex" on her.                                                                                                                                                                                                                                   



                                                                      M.Y.  initially told her mother that it was "supposed to be a secret."                                                                                                                                                                                                                                                                                      But,  



 accordingto                                                   Clah, M.Y. finally told her, "Grandpa touched me." Clah                                                                                                                                                                                                                                           testified that M.Y.  



 used her middle finger to touch her genitals, and she said, "Mom, like that."                                                                                                                                                                                                                                                                                                                          



                                                                      M.Y.  had a younger sister, five-year-old T.Y.                                                                                                                                                                                              Clah did not speak to T.Y.                                                                                        



 directly about her older sister's allegations.                                                                                                                                                                           But both M.Y. and T.Y. overheard a phone                                                                                                                                                     



 conversation in which Clah discussed the possibility that Augustine was going to go to                                                                                                                                                                                                                                                                                                                                                         



jail.   When M.Y. and T.Y. asked their mother about this conversation, Clah told them                                                                                                                                                                                                                                                                                                                                             



 that she wanted to lock up Augustine and "throw away the                                                                                                                                                                                                                                                               key".    And she told her                                                                                         



 daughters that she was going to try to find "justice" for them.                                                                                                                                                                                                                                                              



                                                                      Apparently as a result of this conversation,                                                                                                                                                                                         M.Y.   told Karin Gillis                                                                                                   (the  



  school counselor) that her grandfather was going to jail.                                                                                                                                                                                                                                     



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                                                On   February   15,   2012,   Investigator   Howell interviewed                                                                                                                                                  Clah   and   her  



husband.   During this interview, Howell learned that T.Y. had said things to Clah which                                                                                                                                                                                                    



suggested that Augustine might have sexually abused T.Y. as well.                                                                                                                                                                            



                                                Investigator Howell then conducted separate, video-recorded interviews of                                                                                                                                                                                  



M.Y.   and T.Y.                                            She interviewed                                                   each   girl twice:                                           on February 15th,                                                       and again on                          



February 16th.                                         



                                                Investigator   Howell's   recorded   interviews   of   the   two   children   were  



admitted at Augustine's trial under Evidence Rule 801(d)(3).                                                                                                                                                            The State also presented                                



the testimony of the other adults who heard the children speak about the alleged abuse.                                                                                                                                                                                                                             



But the State did not call either of the children to testify.                                                                                                                 



                                                The older of the two children, M.Y., testified briefly at Augustine's trial                                                                                                                                                                         



after the defense attorney asked to "cross-examine" her (even though she had given no                                                                                                                                                                                                                    

                                                                                                                            1         The  defense  attorney  asked  M.Y.  only  a  few  

testimony   on   direct   examination).                                                                                                                                                                                                                                                            



questions of substance, and, in each instance, M.Y.'s answers to these questions were not  

                                                                                                                                                                                                                                                                                                       



incriminating to Augustine.   After M.Y. gave this testimony, the defense attorney told  

                                                                                                                                                                                                                                                                                                    



the court that he did not wish to call T.Y. to the stand.  

                                                                                                                                                                                                   



                                                Thus, the State's case against Augustine rested almost exclusively on the  

                                                                                                                                                                                                                                                                                                       



out-of-court statements made by the two children, introduced through the testimony of  

                                                                                                                                                                                                                                                                                                          



adults.  



            1           The   transcript   of   Augustine's   trial   erroneously states                                                                                                                             that   M.Y.   was   "called as                                                          a  



witness on behalf of the plaintiff".                                                                                 M.Y. was called to the stand during the State's case, but                                                                                                                          

the prosecutor did not conduct any direct examination of M.Y.                                                                                                                                                          Instead, M.Y.'s testimony                              

began   with   cross-examination   by   the   defense   attorney,   followed   by   a   short   "redirect"  

examination conducted by the prosecutor.                                                                                                        This redirect examination consisted of only two                                                                                                       

questions:     The   prosecutor   asked M.Y.                                                                                                how many televisions                                                          were   at   her   grandfather's  

house, and where those televisions were located.                                                                                                                    



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                                         The litigation over the admissibility of the four out-of-court interviews                                                                                                                                                                                                                                                                                                             

                                         conducted by Investigator Howell                                                                                                                                



                                                                                 On December 13, 2012 - about three weeks before Augustine's trial was                                                                                                                                                                                                                                                                                                                                                           



 scheduled to begin - the State filed a motion seeking the trial court's                                                                                                                                                                                                                                                                                                                                                                          permission to   



 introduce Investigator Howell's four recorded interviews of the children pursuant to                                                                                                                                                                                                                                                                                                                                                                                                                                      



Evidence Rule 801(d)(3).                                                                                                                                  Five days later, Augustine's attorney filed an opposition to the                                                                                                                                                                                                                                                                                            



 State's motion.                                                                              



                                                                                 But for practical purposes, the litigation of this issue had already begun five                                                                                                                                                                                                                                                                                                                                                  



months   earlier - when Augustine's attorney filed a notice that he intended to                                                                                                                                                                                                                                                                                                                                                                                                                                call  



Dr. John C. Yuille, a forensic psychologist, to testify at Augustine's trial about potential                                                                                                                                                                                                                                                                                                                                                                                        



problems with the way in which                                                                                                                                                               Investigator Howellinterviewed                                                                                                                                                                 M.Y. and T.Y., and                                                                                                       the  



potential unreliability of the children's statements during those interviews.                                                                                                                                                                                                                                                                                                                                                                                



                                                                                 After the defense attorney notified the court and the State that he intended                                                                                                                                                                                                                                                                                                                         



to call Dr. Yuille as an expert witness, the State objected that the defense attorney had                                                                                                                                                                                                                                                                                                                                                                                                                         



not yet provided the State with a written description of the substance of Dr. Yuille's                                                                                                                                                                                                                                                                                                                                                                                                



proposed   testimony   -   his   opinion,   and   the   underlying basis                                                                                                                                                                                                                                                                                                                       of   that   opinion   -   as  



required by Alaska Criminal Rule 16(c)(4).                                                                                                                                                                                                                              In response to the State's objection, the                                                                                                                                                                                                    



 defense attorney filed a copy of Dr. Yuille's nine-page written report.                                                                                                                                                                                                                                                                                                                                                             



                                                                                 We   are   about   to   describe   Dr.   Yuille's   report   in   some   detail.     Our  



presentation of these details is not intended as an endorsement of Dr. Yuille's analytical                                                                                                                                                                                                                                                                                                                                                                                     



 approach or his conclusions.                                                                                                                                             Rather, our aim is to demonstrate that the defense offered                                                                                                                                                                                                                                                        



 substantive   reasons   to   doubt   the   reliability   of    M.Y.'s   and   T.Y.'s   statements   to  



Investigator Howell.                                                                                                       



                                                                                 In his report, Dr. Yuille offered his views on the general principles that an                                                                                                                                                                                                                                                                                                                                                            



 investigator must be aware of, and adhere to, when conducting an investigative interview                                                                                                                                                                                                                                                                                                                                                                                        



 of a child, so as to "maximize the information obtained from the child while minimizing                                                                                                                                                                                                                                                                                                                                                                              



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the contamination of the child's memory". Under these principles, an interviewer should                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 (1)  avoid leading questions, (2) allow children to take their time and describe things in                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



their own words, (3) obtain as much independent information as possible, to give the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 interviewer an objective basis for assessing the credibility of the child's account, and (4)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



 avoid going into the interview with only one working hypothesis, an approach that can                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                



 "blind" the interviewer to other relevant information that the child may have.                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



                                                                                               Dr. Yuille's report explained that he and his colleagues (from Europe and                                                                                                                                                                                                                                                                                                                                                                                                                             



the United States)                                                                                                                    had   developed a set of two dozen criteria for evaluating a child's                                                                                                                                                                                                                                                                                                                                                          



 statement about alleged abuse - more specifically, for evaluating whether it is likely                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



that the child's assertions and descriptions are based on memories of real experiences,                                                                                                                                                                                                                                                                                                                                                                                                                                                 



rather than things the child has "only imagined or heard about."                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                              According to Dr. Yuille, any investigative interview of a child should be                                                                                                                                                                                                                                                                                                                                                                                                                                      



 evaluated according to the presence or absence of these twenty-four criteria.                                                                                                                                                                                                                                                                                                                                                                                                                                                                 But among   



the twenty-four,                                                                                                        five criteria are critical,                                                                                                                                                       in the sense that all five usually should be                                                                                                                                                                                                                                                     



present if the child is indeed describing real experiences.                                                                                                                                                                                                                                                                                                                                                       According to Dr. Yuille, the                                                                                                                                                         



 five primary criteria are:                                                                                                                                                    (1) the allegation should be of a coherent event, (2) the child                                                                                                                                                                                                                                                                                                                                              



 should describe this event in a spontaneous fashion, (3) the child's description should                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



have the quantity and quality of detail one would expect from this particular child, and,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 if the child has reached school age,                                                                                                                                                                                                                                 (4) the child's allegation should include an age-                                                                                                                                                                                                                                                                        



 appropriate    sense    of    time   and    space,    and   (5)    it    should    include   age-appropriate  



 descriptions of the child's interactions with the perpetrator.                                                                                                                                                                                                                                                                                                                                                                



                                                                                               In addition to describing this general approach to conducting investigative                                                                                                                                                                                                                                                                                                                                                               



 interviews of children, Dr. Yuille also offered an evaluation of Investigator                                                                                                                                                                                                                                                                                                                                                                                                                                                                           Howell's  



 interviews with M.Y. and T.Y.                                                                                                                                                                                             In his introduction to this critique, Dr. Yuille explained                                                                                                                                                                                                                                                                       



that he did not intend his remarks to be "viewed as a criticism of the officer", but rather                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



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 a criticism "of the organization that did not provide [her with] the appropriate training                                                                                                                                                                                                                                                                                                                                                                                           



to perform this type of interview."                                                                                                                                                                            



                                                                                According to Dr. Yuille, the four interviews in question (the two interviews                                                                                                                                                                                                                                                                                                         



 of M.Y. and the two interviews of T.Y.) were of "uniformly of poor quality".                                                                                                                                                                                                                                                                                                                                                                                       Dr. Yuille   



noted that                                                       the   interviews were "characterized by the use of leading questions [and]                                                                                                                                                                                                                                                                                                                                                     



multiple choice questions."                                                                                                                                           Based on the                                                                               content of Howell's questions,                                                                                                                                                                    Dr.   Yuille  



 characterized   the   interviews   as   "attempts   to   prove   what   the   interviewer   [already]  



believed had happened", rather than open-ended investigative efforts.                                                                                                                                                                                                                                                                                                                                                          



                                                                                Dr. Yuille then criticized several of the interviewing techniques that Howell                                                                                                                                                                                                                                                                                                                           



used when she interviewed the children:                                                                                                                                                  



                                         	   Howell allowed the children to draw throughout the interviews.                                                                                                                                                                                                                                                                                                                                      According to   



                                                            Dr. Yuille, "[d]rawing is a distracting activity and it interferes with effective                                                                                                                                                                                                                                                                                                                                



                                                            interviewing."  



                                         	   Many of Howell's questions were "multiple-choice" questions -                                                                                                                                                                                                                                                                                                                                                           questions  



                                                            that offered the children a selection of answers.                                                                                                                                                                                                                                                 According to Dr. Yuille, a                                                                                                                                 



                                                            person who conducts an investigative interview of a child must avoid multiple-                                                                                                                                                                                                                                                                                                                                   



                                                            choice   questions   because   "children   ...    will   typically   guess   one   of   the  



                                                            alternatives even if they have no memory."                                                                                                                                                                                                                   This means that a child's answers                                                                                                                        



                                                            to such questions are "often unreliable".                                                                                                                              



                                         	   Howell repeatedly used leading questions during all four interviews, making                                                                                                                                                                                                                                                                                                                                                           



                                                            it   "impossible   to   tell"   whether   the   child's   answers   were   reliable   or   were,  



                                                            instead, "a result of the leading nature of the question."                                                                                                                                                                                                                                                                                



                                                                                                    (Dr. Yuille listed these examples of leading questions that Howell asked                                                                                                                                                                                                                                                                                                                    



                                                                                the children: "Did he tell you not to tell?"; "Did you say anything?"; "Are                                                                                                                                                                                                                                                                                                                                           



                                                                                there any spots on his penis?")                                                                                                                                                          



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----------------------- Page 10-----------------------

                                   	   Dr.   Yuille also pointed out that,                                                                                                                                                   in response to Howell's                                                                                                             leading questions   



                                                    during her interview with T.Y. on February 15th, the girl gave inconsistent                                                                                                                                                                                                                                                                



                                                    descriptions of the same event:                                                                                                                                     When Howell asked T.Y., "Did you                                                                                                                                                                       go?",  



                                                    T.Y.  replied, "Yes."                                                                                     But a little later, when Howell phrased the question as,                                                                                                                                                                                                                       



                                                    "Did he make you stay?", T.Y. replied that Augustine made her stay.                                                                                                                                                                                                                                                                                                   



                                   	   Based on the tenor of Howell's questions as a whole, Dr. Yuille concluded that                                                                                                                                                                                                                                                                                                                   



                                                   the four interviews "were driven by                                                                                                                                                          a   single hypothesis" - the theory that                                                                                                                                                



                                                   Augustine had committed an offense.                                                                                                                                                               According to Dr. Yuille, "[t]he biggest                                                                                                                             



                                                    single impediment to effective investigation is interviewer bias" - not bias in                                                                                                                                                                                                                                                                                                                



                                                   the sense of personal enmity or prejudice,                                                                                                                                                                                        but rather                                               in the sense that the                                                                       



                                                    interviewer   is   attempting   "to   prove   a   particular   hypothesis   rather   than  



                                                    [conduct] an investigation to determine what may or may not have happened."                                                                                                                                                                                                                                                                   



                                                                     In his concluding paragraph, Dr. Yuille summed up his evaluation of the                                                                                                                                                                                                                                                                                               



interviews with the following observations:                                                                                                                                                                                 



                                                                      

                                                                                                       Four   poor   quality   interviews   were   conducted   with  

                                                                     these two children.                                                                                No attempt was made to determine what                                                                                                                                                  

                                                                     may or may not have happened in this case:                                                                                                                                                                                             the interviews   

                                                                     were intended to prove that the suspect had offended against                                                                                                                                                                                                                    

                                                                     these children.                                                             The biased interviews were characterized by                                                                                                                                                                               

                                                                     leading questions and multiple choice questions.                                                                                                                                                                                                    Little infor-  

                                                                     mation   was   obtained   from   the   children[,]   and   what   was  

                                                                     obtained was of questionable reliability.                                                                                                                                                                          Proper, effective,   

                                                                     non-leading   interviews   of   these   children   are   needed    to  

                                                                     determine what, if anything, may have happened in this case.                                                                                                                                                                                                                            

                                                                     At present, an assessment of the credibility of the allegations                                                                                                                                                                                              

                                                                     is impossible.                                                         



                                                                                                                                                                                                               -   10 -	                                                                                                                                                                                                             2464
  


----------------------- Page 11-----------------------

                                                                                  Five months later, when the State formally sought admission of Howell's                                                                                                                                                                                                                                                                                                                                 



 four interviews with the children,                                                                                                                                                                                the defense attorney's opposition to                                                                                                                                                                                                    this evidence   



rested heavily on the conclusions that Dr. Yuille reached in his report.                                                                                                                                                                                                                                                                                                                                                                      



                                                                                   In the defense attorney's opposition to the State's motion, he echoed four                                                                                                                                                                                                                                                                                                                                                            



 of   Dr.   Yuille's   primary   criticisms   of   the   way   that   Investigator   Howell handled                                                                                                                                                                                                                                                                                                                                                                                                                         the  



 interviews.    The defense attorney argued that Howell had undermined the reliability of                                                                                                                                                                                                                                                                                                                                                                                                                                           



the interviews by:                                                                                            (1) asking leading questions; (2) asking multiple-choice questions or                                                                                                                                                                                                                                                                                                                                                 



 compound questions; (3) asking questions which suggested that Howell already believed                                                                                                                                                                                                                                                                                                                                                                                                         



the accusations against Augustine,                                                                                                                                                                                     and that she was looking for                                                                                                                                                                answers that would                                                                     



 support those accusations; and (4) allowing the girls to distract themselves by drawing                                                                                                                                                                                                                                                                                                                                                                                                        



pictures throughout the interviews.                                                                                                                                                                                    



                                                                                   In addition, the defense attorney argued that the girls' statements had been                                                                                                                                                                                                                                                                                                                                                      



 influenced   by   their   mother's   pre-interview   actions   and   conversations,   which   he  



 characterized as both "inflammatory" and "suggestive".                                                                                                                                                                                                                                                                                                



                                                                                  Based on all of the above, the defense attorney argued that the State had                                                                                                                                                                                                                                                                                                                                                                



 failed to satisfy the criteria for admissibility specified in Evidence Rule                                                                                                                                                                                                                                                                                                                                                                             801(d)(3).    In  



particular, the defense attorney contended that the interviews failed to satisfy subsection                                                                                                                                                                                                                                                                                                                                                                                       



 (d)(3)(F), which requires the State to prove that "the taking of the statement as a whole                                                                                                                                                                                                                                                                                                                                                                                                          



was conducted in a manner that would avoid undue influence [on] the victim".                                                                                                                                                                                                                                                                                                                                                                                                                       



                                                                                  But over the defense attorney's objections, the trial judge ruled that the                                                                                                                                                                                                                                                                                                                                                                  



recorded   statements   of   the   two   children   met   the   requirements   of   Evidence   Rule  



 801(d)(3), and that those out-of-court statements were therefore admissible.                                                                                                                                                                                                                                                                                                                                                                                                        



                                                                                   The judge made no findings on the factual contentions raised by the defense                                                                                                                                                                                                                                                                                                                                      



 attorney, or on the criticisms raised in Dr. Yuille's report.                                                                                                                                                                                                                                                                                                                 Instead, the judge simply                                                                                               



recited all of the defense attorney's concerns, and then the judge declared:                                                                                                                                                                                                                                                                                                                                  



                                                                                    



                                                                                                                                                                                                                                                        -   11 -                                                                                                                                                                                                                                                       2464
  


----------------------- Page 12-----------------------

                                                               All of the issues raised by the defense go to the weight                                                                                            

                                          to   be   given    the   evidence[,]   and   [those   issues]   can   be  

                                          addressed                             through                        cross-examination                                              or           by             otherwise  

                                          impeaching the [out-of-court] statements.                                                                                              The defense can                            

                                          cross-examine                                        the              children's                            mother                        regarding                            [the]  

                                           statements she made to the children [before the interviews].                                                                                                                                  

                                          The defense can cross-examine the children. The defense can                                                                                                                        

                                          also    cross-examine    Investigator    Howell    regarding    [the]  

                                          methods [she] used in the interviews.                                                                                   



The judge then stated,                                                     without further elaboration,                                                                  that he was granting the State's                                                  



motion to admit the four interviews under Evidence Rule 801(d)(3).                                                                                                                                                       



                     A trial judge's duty under Evidence Rule 801(d)(3)                                                                                   



                                          In a jury                        trial,   it is the jury's task to determine the ultimate weight or                                                                                                                             



credibility of the evidence presented.                                                                              But if there is a controversy as to whether particu-                                                                                

lar evidence is admissible, it is the trial judge who must resolve that controversy.                                                                                                                                                                          2  



                                          This  same  division  of  authority  applies  even  in  instances  where  the  

                                                                                                                                                                                                                                                                      



admissibility of particular evidence hinges on a foundational showing that the evidence  

                                                                                                                                                                                                                                                     



is reliable or trustworthy.  

                                                                                  



                                          For  instance,  in  cases  that  depend  on  eyewitness  identification,  if  the  

                                                                                                                                                                                                                                                                      



defendant objects that the identification procedure was unduly suggestive, the State must  

                                                                                                                                                                                                                                                                  

                                                                                                                                                                  3       Or in cases where the defendant  

establish that the witness's identification is reliable.  

                                                                                                                                                                                                                                                 



wishes to introduce someone else's out-of-court confession to the crime, the defendant  

                                                                                                                                                                                                                                                  



           2         See  Alaska Evidence Rule 104(a).                                                                       



           3  

                                                                                                                                                                                                                             

                     See Tegoseak v. State, 221 P.3d 345, 353-54 (Alaska App. 2009).  



                                                                                                                                               

                                                                                                                               -  12 -                                                                                                                             2464
  


----------------------- Page 13-----------------------

must establish that "corroborating circumstances clearly indicate the trustworthiness of                                                                           



                                                              4  

the [other person's] statement."                                 



                          In  such  instances,  both  the  judge  and  the  jury  will  be  assessing  the  

                                                                                                                                                                



reliability or trustworthiness of the evidence.                                            The  judge performs this analysis first,  

                                                                                                                                                              



when the judge decides whether the evidence is admissible at all.  If the judge rules that  

                                                                                                                                                               



the evidence is admissible, the party who opposed the admission of the evidence is still  

                                                                                                                                                                



 free to argue to the jury that the evidence is unreliable or not credible.  

                                                                                                                                        



                          These  same  principles  apply  when  the  State  invokes  Evidence  Rule  

                                                                                                                                                            



 801(d)(3)  as  a  means  of  introducing evidence  of  a  child's  out-of-court  statements  

                                                                                                                                                 



 concerning a crime.  

                          



                          As  the  proponent  of  this  evidence,  the  State  must  establish  the  eight  

                                                                                                                                                             



 foundational requirements codified in subsections (A) - (H) of Evidence Rule 801(d)(3).  

                                                                                                                                                                        



And two of these foundational requirements involve assessments of the reliability or  

                                                                                                                                                                  



trustworthiness of the child's out-of-court statement.  

                                                                                                        



                          Under subsection (F), the State must prove that "the taking of the statement  

                                                                                                                                                     



 as  a  whole  was conducted in a manner that would avoid undue influence [on] the  

                                                                                                                                                                



victim".             And under subsection (H),  the judge must additionally determine that the  

                                                                                                                                                                



 child's statement is "sufficiently reliable and trustworthy",  and  that "the interests of  

                                                                                                                                                                  



justice are best served by admitting the recording [of the statement] into evidence."  

                                                                                                                                                                  



                          (We acknowledge that the wordingof subsection (H) is ambiguous, and that  

                                                                                                                                                                



 it could arguably be read to mean that the judge should assess whether the recording of  

                                                                                                                                                                   



the statement is "sufficiently reliable and trustworthy" - in the sense that the recording  

                                                                                                                                                     



 accurately  depicts  the  taking  of  the  child's  statement,  without  regard  to  the  larger  

                                                                                                                                                           



 question of whether the statement itself is reliable and trustworthy.  Here is the pertinent  

                                                                                                                                                      



 language:  



       4     Alaska Evidence Rule 804(b)(3).                               



                                                                              -   13 -                                                                       2464
  


----------------------- Page 14-----------------------

                       

                                                                                                            

                               (H)  the  court  has  had  an  opportunity  to  view  the  

                                                                                                           

                     recording and  determine  that  it  is  sufficiently  reliable  and  

                                                                                                              

                     trustworthy and that the interests of justice are best served by  

                                                                                

                     admitting the recording into evidence.  



                                                                                                                              

But as we are about to explain in some detail, the legislative history of Evidence Rule  



                                                                                                                             

 801(d)(3) demonstrates that the primary goal of subsection (H) is to have the trial judge  



                                                                                                                             

assess the reliability and trustworthiness of the child's statement, not the aural and visual  



                                            

accuracy of the recording.)  



                                                                                                                                 

                     In Augustine's case, the defense attorney raised questions as to whether the  



                                                                                                                                

children  had  been  subjected  to  undue  influence,  either  by  their  mother  (before  the  



                                                                                                                             

interviews),  or by the interviewer herself,  due  to her method of questioning.                                             And,  



                                                                                                                      

relying  on  Dr.  Yuille's  conclusions,  the  defense  attorney  raised  broader  questions  



                                                                                                                          

concerning the reliability and trustworthiness of the statements elicited from the children  



                                   

during the interviews.  



                                                                                                                                 

                     But the trial judge made no findings regarding these concerns,  and the  



                                                                                                                   

judge's written decision does not reflect  that the judge engaged in any independent  



                                                                                                                             

analysis of the issues raised by the defense attorney.   Instead, the judge simply noted  



                                                                                                             

these concerns and then declared that these matters were for the jury.  



                                                                                                                             

                     The judge's approach  to  this issue was inconsistent with his duty under  



                                                                                                                                 

Evidence Rule 104(a) - the duty to determine, before admitting the evidence, that the  



                                                                                                                                       

 State had satisfied the foundational requirements specified in Evidence Rule 801(d)(3).  



                                                                                                                                

Moreover, as we are about to explain, the judge's ruling was inconsistent with the role  



                                                                                                                              

that  was  envisioned  for  trial  judges  by  the  legislators  who  drafted  Evidence  Rule  



                  

 801(d)(3).  



                                                              -   14 -                                                        2464
  


----------------------- Page 15-----------------------

                    (a)   The legislative history of Alaska Evidence Rule 801(d)(3)                                          



                           Alaska Evidence Rule 801(d)(3) was enacted by the legislature, not by the                                                                    



                                                5  

Alaska Supreme Court.                               



                                                                                                                                                                

                           The original version of Evidence Rule 801(d)(3) was introduced as Senate  

                                                                                                                6   The chief sponsor of this bill  

                                                                                                                                                                        

Bill 117 (24th Legislature) at the end of February 2005.  



was Senator Hollis French.  

                                                        



                           In the original version of the bill, the new hearsay exception was going to  

                                                                                                                                                                          



be codified in a completely new evidence rule, Rule 413.   And the two subsections at  

                                                                                                                                                                          



issue in this appeal - subsections (F) and (H) - were originally labeled subsections (6)  

                                                                                                                                                                        



and (8):  

         



                             

                                        (6)  the  taking  of  the  statement  as  a  whole  was  

                                                                                                                                          

                           conducted in a manner that would avoid undue influence of  

                                                                                                                                               

                           the victim;  

                                                  

                                        .    .   .  

                                                 



                                        (8)  the  court  has  viewed  the  recording  and  has  

                                                                                                                                          

                           determined that it is sufficiently reliable and trustworthy and  

                                                                                                                                            

                           that the interests of justice are best served by admitting the  

                                                                                                                                             

                           recording into evidence.  

                                                                            



(This text is available at http://www.akleg.gov/PDF/24/Bills/SB0117A.pdf.)  

                                                 



                           The  Senate  Judiciary  Committee  ultimately  decided  to  insert  the  new  

                                                                                                                                                                     



provision into existing Evidence Rule 801(d) (the rule defining hearsay), rather than to  

                                                                                                                                                                          



       5     See  Article IV, Section 15 of the Alaska Constitution, which grants the legislature the                                                                   



authority to amend the rules of court.                                  



       6  

                                                                              

             See 2005 Senate Journal 413-14.  



                                                                                           

                                                                                 -  15 -                                                                            2464
  


----------------------- Page 16-----------------------

                                                                                                                                                                                 7  

create   a   whole   new   evidence   rule.      Because   of   the   Committee's   decision,   the  



subsections of the rule became labeled with letters rather than numbers. Thus, subsection                                                                                                                                                                                                                                                                           



(6)  became subsection (F), and subsection (8) became subsection (H).                                                                                                                                                                                                                                                                     



                                                               When Senator French introduced his bill to the Senate Judiciary Committee                                                                                                                                                                                                                          



on March 31, 2005, he told the Committee that the purpose of the bill was to guarantee                                                                                                                                                                                                                                                                                



that the out-of-court statements of younger                                                                                                                                                                       crime victims would be admissible if the                                                                                                                                          



statements were elicited under certain specific conditions.                                                                                                                                                                                                                When describing the specific                                                                          



conditions he envisioned, Senator French told the Committee that all of these forensic                                                                                                                                                                                                                                                                                        



interviews  



                                                                

                                                               [would                                   be]                     conducted                                               at               safe,                          nurturing                                         child-friendly  

                                                               environments [by] interviewers ... specially trained to work                                                                                                                                                                                                  

                                                               with   children,    and   work   with   a   multi-disciplinary   team  

                                                               focused on the child's welfare.                                                                                                                 The team may include police                                                                                 

                                                               officers,                                            social                                 workers,                                              child                              therapists,                                                 medical  

                                                              professionals, and child advocates.                                                                                                                                 



 Senator French added that, by "centralizing" the child's dealings with adults in positions                                                                                                                                                                                                                                                                                



of authority at a child advocacy center, a child crime victim could be made to feel "safer                                                                                                                                                                                                                                                                                              



and more confident".                                                                                 And, according to Senator French, changing the law to authorize                                                                                                                                                                                                     



the admission of recorded statements made by children in such environments "[would]                                                                                                                                                                                                                                                                                       



enhance the law enforcement process to bring child predators to justice."                                                                                                                                                                                                                                                                               The senator   



explained:   



                                                                

                                                               A   statement   made   by   a   child   in   an   environment   that   is  

                                                               focused   on the child's welfare and comfort is often much                                                                                                                                                                                                 

                                                               more informative about the child's experience with an abuser                                                                                                                                                                                             

                                                               than   the   testimony   the   child   will   give   in   a   formal   court  



                7              See   CSSB 117 (Judiciary) (24th Legislature).                                                                                                                                                                     The text of this second version                                                                                                                          is  



available at http://www.akleg.gov/PDF/24/Bills/SB0117B.PDF.                                                                                                                                                                                                                             



                                                                                                                                                                                             -   16 -                                                                                                                                                                                          2464
  


----------------------- Page 17-----------------------

                               setting.    Children express things differently, and they often                                                                

                               need to explain what has happened to them using physical                                                               

                               objects,   rather than words.                                       Children are,                      understandably,  

                               intimidated by formal questioning by unfamiliar adults in a                                                                              

                               courtroom setting.                            [And] their                   difficulty in articulating the                           

                               details of a very painful and very private experience often                                                                    

                               results in a reduction of the charges.                                                

                                 

Thus, Senator French explained, the "basic idea behind the bill" was to make sure that                                                                                                           



a   child's   pre-trial   interview   about   the   alleged   crime   would   be   admissible   at   the  



defendant's trial as long as certain conditions were satisfied.                                                        



                               When describing "the conditions that must be satisfied", Senator French  

                                                                                                                                                                                         



spoke of the need to have a child "interviewed by someone who's really skilled at talking  

                                                                                                                                                                                           



to children and slowly letting them tell their own story,                                                                             in their own words,                               without  



leading  the child ...  to an incriminating statement" - because "[k]ids are obviously  

                                                                                                                                                                                   



easily led, and it's real important that you not put words in their mouths, [that] you let  

                                                                                                                                                                                                    



them tell their own story."                                     



                               A little later in the hearing, Senator French elaborated on this requirement:  

                                                                                                                                                                             



                                 

                                               One of the concerns [in this area] are  some of the  

                                                                                                                                                                   

                               horror  stories  [from]  the  early  days  of  child  sex  abuse  

                                                                                                                                                            

                               prosecutions,  when you had folks really taking kids by the  

                                                                                                                                                                   

                               nose and getting [them to make] some astonishingly awf[ul],  

                                                                                                                                                         

                               untruthful statements, as it turns out, ... and convicting folks  

                                                                                                                                                                

                               on the basis of [those false statements]. ...  And that's why ...  

                                                                                                                                                                      

                               section (F) is so important - which is that the taking of the  

                                                                                                                                                                    

                               statement, as a whole, is conducted in a manner that would  

                                                                                                                                                            

                               avoid undue influence of the victim.  

                                                                                                                      



                                               And the folks who take these [statements] for a living  

                                                                                                                                                              

                               will tell you how important it is to ask open-ended questions,  

                                                                                                                                                    

                               and  not  put  words  in  [a]  kid's  mouth.                                                         And,  [under  the  

                                                                                                                                                                   

                               proposed law], the judge has to have looked at this statement  

                                                                                                                                                     



                                                                                              -   17 -                                                                                         2464
  


----------------------- Page 18-----------------------

                                                                               before it's admitted, and - [or] had the opportunity to look                                                                                                                                                                                                                                                                         

                                                                               at it; we're going to talk about changing that wording a little                                                                                                                                                                                                                                                             

                                                                               bit - to make certain that it is trustworthy.                                                                                                                                                                                                                            So we're not                                                    

                                                                               convicting people based on, you know, fairy tales.                                                                                                                                                                                                                                                      



                                                                               In    these    comments    and    explanations,    Senator    French    was    directly  



 addressing the requirement codified in subsection (F) of Evidence Rule 801(d)(3):                                                                                                                                                                                                                                                                                                                                                                                                                  the  



requirement that the child be interviewed "in a manner that would avoid undue influence                                                                                                                                                                                                                                                                                                                                                                               



 of the [child]".                                                                        But Senator French's comments and explanations were also relevant to                                                                                                                                                                                                                                                                                                                                                  



the requirement codified in subsection (H) of the rule:                                                                                                                                                                                                                                                                          the duty of the court to assess                                                                                                                     



whether the child's statement "is sufficiently reliable and                                                                                                                                                                                                                                                                                           trustworthy", and "that the                                                                                                                      



interests   of justice are best served by admitting the recording [of the statement] into                                                                                                                                                                                                                                                                                                                                                                                                          



 evidence."   



                                                                               We have already quoted                                                                                                                              the   original language of subsection (H).                                                                                                                                                                                                          In its   



 original form, this subsection declared that the recording of a child's pre-trial interview                                                                                                                                                                                                                                                                                                                                                                        



would   not   be   admissible   until the                                                                                                                                                                             trial judge                                                       had   "viewed   the   recording"   and   had  



 determined   that   the   child's   out-of-court    statement   was   "sufficiently   reliable   and  



trustworthy".    



                                                                               But at the Judiciary Committee hearing, Senator French explained that the                                                                                                                                                                                                                                                                                                                                                 



Department of Law's representative had come up with "a good suggestion" that would                                                                                                                                                                                                                                                                                                                                                                                                     



 ease this burden on trial judges.                                                                                                                                                     Rather than requiring trial judges to personally view the                                                                                                                                                                                                                                                         



video recordingin every case where the State invoked Evidence Rule 801(d)(3), Senator                                                                                                                                                                                                                                                                                                                                                                                          



French and the representative of the Department of Law suggested that subsection (H)                                                                                                                                                                                                                                                                                                                                                                                                                  



 of the rule be amended to require only that the trial judge have "                                                                                                                                                                                                                                                                                                           the opportunity to view                                                                                          



the recording". (Emphasis added.)                                                                                                                                                                          



                                                                               When one of the committee members asked how a judge could possibly                                                                                                                                                                                                                                                                                                                          



 determine that an out-of-court statement was "sufficiently reliable and trustworthy" to                                                                                                                                                                                                                                                                                                                                                                                                                      



be admitted into evidence if the judge hadn't personally reviewed the video recording                                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                                             -   18 -                                                                                                                                                                                                                                             2464
  


----------------------- Page 19-----------------------

 of the statement, Senator French answered that                                                                                                                                                                                                         his point was to exempt judges from                                                                                                                                  



 having   to   review   the   recording   if   the   defense   attorney   made   no   objection   to   the  



 admission of the statement.                                                                                                                   Senator French conceded that, if the defense attorney                                                                                                                                                                                                                                 did  



 object, the trial judge "probably is going to have to look at [the recording]."                                                                                                                                                                                                                                                                                                                 



                                                                     Another committee member, Senator Therriault, immediately endorsed this                                                                                                                                                                                                                                                                                           



 view   of   the   trial judge's                                                                                                   responsibilities.     He   declared   that   if   the   defense   attorney  



 objected to the admission of the child's statement, "the judge would be forced ... to view                                                                                                                                                                                                                                                                                                                                    



 the tape and see if the challenge [was] valid."                                                                                                                                                                                         



                                                                     The chair of the Committee, Senator Seekins, also endorsed the view that                                                                                                                                                                                                                                                                                        



judges would be required to actively review the recording of the child's statement if the                                                                                                                                                                                                                                                                                                                                              



 admissibility of the child's statement                                                                                                                                                            was challenged.                                                                          Senator Seekins told Senator                                                                                       



 French   that   he   had   no   problem   with   exempting   judges   from   reviewing   the   video  



 recordings in cases where "[it is] certain that there has been no motion to suppress".                                                                                                                                                                                                                                                                                                                                           But  



 in cases where the defense does object to the admission of the out-of-court statement,                                                                                                                                                                                                                                                                                                           



  Senator   Seekins   reiterated   the   view   that   trial   judges   should   have   the   affirmative  



 responsibility to review the tape before deciding whether to allow the introduction of this                                                                                                                                                                                                                                                                                                                                         



 evidence.     Senator   French   responded,   "I   think   that   [this   responsibility]   would   be  



 unavoidable."    



                                                                     With   these   clarifying   remarks,   the   Judiciary   Committee   endorsed   the  



 proposed amendment of subsection                                                                                                                                                             (H) - thus putting subsection (H) in its present                                                                                                                                                                   



  form.  



                                                                     Thus,   under subsections (F) and (H) of Evidence Rule 801(d)(3),                                                                                                                                                                                                                                                                                             trial  



judges are required (1) to affirmatively determine that the child's statement was elicited                                                                                                                                                                                                                                                                                                                          



 in a neutral and non-leading manner, and (2) to independently evaluate the reliability and                                                                                                                                                                                                                                                                                                                                         



 trustworthiness of the statement if it is challenged.                                                                                                                                                                                                         These duties are critically important                                                                                                  



 because of Senator French's other major goal:                                                                                                                                                                                               to exempt the child from having to take                                                                                                                                              



                                                                                                                                                                                                              -   19 -                                                                                                                                                                                                           2464
  


----------------------- Page 20-----------------------

the stand at the defendant's trial,                                          and   to allow the State to pursue the sexual abuse                                                 



charges based solely on the child's out-of-court statement, unless the defense attorney                                                                                     



expressly invokes the defendant's right to cross-examine the child:                                                                               



                               

                                            Senator French                    : [P]robably the most crucial aspect of                                        

                                                                                                                                                         

                             the bill is [the] provision ... that says "the victim [must be]  

                             present at the proceeding and available to testify."                                                         I think the      

                             bill would be unconstitutional without that provision, so it's                                                               

                                                                                                                               

                             important that the victim be available to be cross-examined  

                              on   the   statement   that   he   or   she   made   back   at   the   [child  

                              advocacy center].                        

                                                   

                                            .    .   .  



                                                                                                                                            

                                            Senator Therriault:  ...  [Y]ou've got here, "available  

                             to   testify".     [Does]   this   wording ...                                     mean   [that   the   child]  

                                                                                                                                                           

                             would have to actually sit up there  [on  the stand] and go  

                                                                                                                                            

                             through [their] halting [testimony] in order for the videotape  

                                                                                                                                  

                              [of the child's prior statement] to be shown?  



                                                                                                                                                                   

                                            Senator French:  ...  [T]hat's certainly not my intent.  

                                                                                                                                                        

                             My intent is that [a] prosecutor could be asked to call his next  

                                                                                                                                                              

                             witness, and [the prosecutor would] say, "My next witness is  

                                                                                                                                                          

                             going to be ... the person who took this statement from the  

                                                                                                                                  

                              child,  and  we're  going  to  play  the  [child's  out-of-court]  

                                                                                                                                                             

                              statement."  And let the defense call the victim to the stand to  

                                                                                                  

                              cross-examine, if they choose.  



                                                                                                                                                                                       

                             A little later in the hearing, Senator Seekins asked a representative of the  



                                                                                                                                                                                     

Department of Law if, under the proposed statute, the video recording of the child's pre- 



                                                                                                                                                                                    

trial interview "would be the direct testimony of the child", and if the child would only  



                                                                                                                                                                                   

need  to be physically present in court "[as] necessary for cross-examination, or [for]  



                                                                                                                                                                                         

expansion of the testimony that was already on the [video] tape".  The Department of  



                                                                                                                                                                            

Law's representative replied, "I think that [what you just described] would, in practice,  



                                                        

be what would happen."  



                                                                                        -  20 -                                                                                     2464
  


----------------------- Page 21-----------------------

                                                              (b)  Our interpretation of Evidence Rule 801(d)(3)(F) and (H)                                                                                                                                                                                                                                                                                                  



                                                                                 As we noted earlier, when the admissibility of particular evidence is called                                                                                                                                                                                                                                                                                                                                        



 into   question,   Evidence   Rule   104(a)   requires   trial judges                                                                                                                                                                                                                                                                                                to   determine   whether   the  



proponent of the evidence has satisfied the foundational requirements for its admission.                                                                                                                                                                                                                                                                                                                                                                                                                                                      



And as we                                                             have just explained in the preceding section of this opinion, the legislative                                                                                                                                                                                                                                                                                                                         



history of Evidence Rule 801(d)(3) confirms that a trial judge has this same duty when                                                                                                                                                                                                                                                                                                                                                                                                                



the   State wishes to introduce the video recording of a child's out-of-court statement                                                                                                                                                                                                                                                                                                                                                                                 



under Rule 801(d)(3).                                                                                                                 



                                                                                 In cases where the defense objects to the admission of a child's out-of-court                                                                                                                                                                                                                                                                                                  



 statement under Evidence Rule 801(d)(3), a trial judge (1) must independently review                                                                                                                                                                                                                                                                                                                                                                                                         



the video recording of the child's statement, and (2) must determine whether the State                                                                                                                                                                                                                                                                                                                                                                                                                  



has satisfied the foundational requirements of subsections (A) through (H) - and,                                                                                                                                                                                                                                                                                                                                                                                                                                        in  



particular, the requirements of subsections (F) and (H).                                                                                                                                                                                                                                                                                      



                                                                                 Thus, before the trialjudge                                                                                                                                    admits the video recording, the State must prove  



-   i.e., the trial judge must affirmatively find - that "the taking of the statement as a                                                                                                                                                                                                                                                                                                                                                                                                                                     



whole was conducted in a manner that would avoid undue influence [on] the victim", that                                                                                                                                                                                                                                                                                                                                                                                                                         



the   out-of-court   statement   "is   sufficiently   reliable   and   trustworthy",   and   that   "the  



 interests of justice are best served by admitting the recording into evidence."                                                                                                                                                                                                                                                                                                                                                                                              



                                                              (c)  Application of this law to Augustine's case                                                                                                                                                                                                             



                                                                                 In   the   present   case,   Augustine's   attorney   affirmatively   objected   to   the  



 admission of M.Y.'s and T.Y.'s recorded pre-trial statements, and the attorney offered                                                                                                                                                                                                                                                                                                                                                                                                    



 articulable reasons for believing that the State had not met the foundational requirements                                                                                                                                                                                                                                                                                                                                                              



 of subsections (F) and (H) of Rule 801(d)(3).                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                   -  21 -                                                                                                                                                                                                                                                   2464
  


----------------------- Page 22-----------------------

                                                                                     But   instead   of   resolving   the   foundational   questions   surrounding   the  



children's   out-of-court   statements,   Augustine's   trial   judge   ruled   that   all   of   these  



questions were for the jury, and the judge directed the defense attorney to litigate these                                                                                                                                                                                                                                                                                                                                                                                                                                         



matters at trial.                                                                               This was error.                                                                                          The judge was required to resolve these issues - and                                                                                                                                                                                                                                                                               



if   the   judge   concluded   that   the   State   had   failed   to   establish   all of                                                                                                                                                                                                                                                                                                                                                              the   foundational  



requirements of Rule 801(d)(3), the judge would be required to deny the State's motion                                                                                                                                                                                                                                                                                                                                                                                                                                  



to admit the evidence under that rule.                                                                                                                                                                                                         



                                                                                     We wish to clarify that, even                                                                                                                                                                    when   a judge denies a motion to admit a                                                                                                                                                                                                                             



child's out-of-court statements under Evidence Rule 801(d)(3), this does not mean that                                                                                                                                                                                                                                                                                                                                                                                                                                                      



the child's out-of-court statements will necessarily be excluded from the trial.                                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                                     Another section of Evidence Rule 801 - section (d)(1) - contains three                                                                                                                                                                                                                                                                                                                                                                         



 subsections that would authorize the judge to admit some                                                                                                                                                                                                                                                                                                                            or all of the child's out-of-                                                                                                    



court statements.                                                                                             Subsection (d)(1)(A) of this rule allows a judge to admit a child's out-                                                                                                                                                                                                                                                                                                                                                    



of-court statement                                                                                                         if   it   is inconsistent with the child's testimony at trial.                                                                                                                                                                                                                                                                                                Subsection  



 (d)(1)(B), allows a judge to admit a child's out-of-court statement if the child's testimony                                                                                                                                                                                                                                                                                                                                                                                                         



is attacked as fabricated or the product of improper influence or motive, and if the out-of-                                                                                                                                                                                                                                                                                                                                                                                                                             



court statement is consistent with the child's testimony.                                                                                                                                                                                                                                                                                               And subsection (d)(1)(C) allows                                                                                                                                     



a judge to admit evidence of a child's out-of-court identification.                                                                                                                                                                                                                                                             



                                                                                     In addition, Evidence Rule 803 contains several hearsay exceptions that                                                                                                                                                                                                                                                                                                                                                                               



might potentially apply to a child's out-of-court statements.                                                                                                                                                                                                                                                                                                                               



                                                                                     But   before   the   State   can   introduce   a   child's   entire   pre-trial interview   



without calling the child to the stand, the trial judge must be satisfied that the State has                                                                                                                                                                                                                                                                                                                                                                                                                                                  



met all the requirements listed in Evidence Rule 801(d)(3).                                                                                                                                                                                                                                                                                                                          



                                                                                     Here, although the trial judge announced that all these requirements were                                                                                                                                                                                                                                                                                                                                                                      



met, he did not personally evaluate whether the State had satisfied requirements (F) and                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 (H).    Rather, he ruled that it was up to the jury to decide whether "the taking of the                                                                                                                                                                                                                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                                 -  22 -                                                                                                                                                                                                                                                                 2464
  


----------------------- Page 23-----------------------

  statement as a whole was conducted in a manner that would avoid undue influence [on]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



  the victim", and whether the statement was "sufficiently reliable and trustworthy".                                                                                                                                                                                                                                                                                                                                                                                          



                                                                                            The   children's   video-recorded   statements   were   not   admissible   under  



  Evidence Rule 801(d)(3) without judicial findings on these matters.                                                                                                                                                                                                                                                                                                                                                                                                 We must therefore                                                   



 remand Augustine's case to the superior court, so that the judge can re-assess whether                                                                                                                                                                                                                                                                                                                                                                                                                                                          



  the State established a proper foundation for the admissibility of these statements.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                            As we explained earlier, Augustine's defense attorney raised questions as                                                                                                                                                                                                                                                                                                                                                                                                                    



  to whether the children were subjected to undue influence, either by their mother (before                                                                                                                                                                                                                                                                                                                                                                                                                                                            



  the interviews),                                                                                           or by Investigator Howell (during the interviews).                                                                                                                                                                                                                                                                                                             And Dr.                                                               Yuille's  



 report   raised   broader   questions   concerning the                                                                                                                                                                                                                                                                                 reliability   and   trustworthiness   of   the  



  statements   elicited   from   the   children   during the                                                                                                                                                                                                                                                                                            interviews,   in   light   of   Investigator  



  Howell's interrogation techniques and her method of conducting the interviews.                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



                                                                                            But the trial judge made no findings regarding                                                                                                                                                                                                                                                                                      these concerns,                                                                                                   and the   



judge's written decision does not reflect that the judge                                                                                                                                                                                                                                                                                                                                      engaged in any independent                                                                                           



  analysis of the issues raised by the defense attorney.                                                                                                                                                                                                                                                                                                                 We therefore direct the superior                                                                                                                                      



  court to resolve these matters.                                                                                                                                                                             



                                                                                            We also note one further issue in this case - an issue arising from the fact                                                                                                                                                                                                                                                                                                                                                                                                      



  that the person who conducted the pre-trial interviews was the same state trooper who                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 had been assigned to investigate whether Augustine had sexually abused the children.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



                                                                                            As we have explained, subsection (F) of Rule 801(d)(3) requires the State                                                                                                                                                                                                                                                                                                                                                                                                  



  to prove that "the taking of the statement as a whole was conducted in a manner that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



 would avoid undue influence of the victim".                                                                                                                                                                                                                                                                



                                                                                            When Senator French explained this requirement to the Senate Judiciary                                                                                                                                                                                                                                                                                                                                                                         



  Committee, he told the Committee the proposed legislation was based on the underlying                                                                                                                                                                                                                                                                                                                                                                                                                                          



 premise that the child's pre-trial interview would be "conducted at safe, nurturing child-                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



  friendly environments [by] interviewers ...                                                                                                                                                                                                                                                                  specially trained to work with children".                                                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                                                  -  23 -                                                                                                                                                                                                                                                                                 2464
  


----------------------- Page 24-----------------------

According to Senator French,                                                                                                                                                           one of the important reasons for requiring a specially                                                                                                                                                                                                                                  



trained interviewer was that "[k]ids are obviously easily led, and it's real important that                                                                                                                                                                                                                                                                                                                                                                                                                 



you not put words in their mouths, [that] you let them tell their own story", so that "we're                                                                                                                                                                                                                                                                                                                                                                                              



not convicting people based on ... fairy tales."                                                                                                                                                                                                                                   Senator French warned the Committee                                                                                                                                          



members about "the                                                                                                            early days of child sex abuse prosecutions, when you had folks                                                                                                                                                                                                                                                                                                        



really taking kids by the nose and getting [them to make] some astonishingly awf[ul],                                                                                                                                                                                                                                                                                                                                                                                             



untruthful statements."                                                                                                                     



                                                                                This insistence that the interview be neutral and non-suggestive is written                                                                                                                                                                                                                                                                                                                              



 into a separate clause of Evidence Rule 801(d)(3).                                                                                                                                                                                                                                                       Under subsection (C) of the rule, the                                                                                                                                                                  



prosecutor and the defense attorney are forbidden from participating in the interview;                                                                                                                                                                                                                                                                                                                                                                               



 indeed, they are prohibited from being present at all.                                                                                                                                                                                                                                                                   



                                                                                But if the attorneys representingthe                                                                                                                                                                          State and                                                the defendant are barred from  



participating, so as to preserve the neutrality and non-suggestiveness of the interview,                                                                                                                                                                                                                                                                                                                                                                              



the participation of agents of those attorneys - their paralegals and their investigators                                                                                                                                                                                                                                                                                                                                                               



-  would seemingly raise the same concerns.                                                                                                                                                                                                                                     



                                                                                In   Augustine's   case,   the   two   children   were   interviewed   by   the   law  



 enforcement officer who had the responsibility for investigating the reported crimes.                                                                                                                                                                                                                                                                                                                                                                                                                                                 



Because Investigator Howell already knew about the children's prior statements when                                                                                                                                                                                                                                                                                                                                                                                                              



 she conducted these interviews, there is a potential danger that the children's responses                                                                                                                                                                                                                                                                                                                                                                               



 could have been influenced by Howell's knowledge and expectations - even though,                                                                                                                                                                                                                                                                                                                                                                                                    



 outwardly, there was nothing suggestive about the interview procedure.                                                                                                                                                                                                                                                                                                                                                                           



                                                                                In   Tegoseak v.                                                                             State,   221 P.3d 345,                                                                                                                351-362   (Alaska App.                                                                                                                          2009),   we  



 discussed how recent psychological research has shown that a witness's identification                                                                                                                                                                                                                                                                                                                                                               



 of a suspect can be influenced by the police interviewer's inadvertent, even unconscious,                                                                                                                                                                                                                                                                                                                                                            



verbal and physical                                                                                               cues - cues                                                                 that arise from                                                                        the interviewer's pre-existing                                                                                                                                               knowledge  



 and   theories   of   the   case.     Many   of   the   factors   that   we   discussed   in   Tegoseak   are  



                                                                                                                                                                                                                                                 -  24 -                                                                                                                                                                                                                                                 2464
  


----------------------- Page 25-----------------------

potentially relevant to the assessment of whether the interviews in Augustine's case were                                                                                                                                                                                                                                                                                                                                                                                         



truly the kind of neutral, non-suggestive interviews envisioned by the                                                                                                                                                                                                                                                                                                                                               legislators who   



 enacted Evidence Rule 801(d)(3).                                                                                                                                                                   



                                                                             We do not decide whether an interview conducted                                                                                                                                                                                                                                                                    by the investigator                         



 assigned to the case is                                                                                                   per se                               inadmissible under Evidence Rule 801(d)(3).                                                                                                                                                                                                                     But we direct                                 



the superior court to consider this factor in assessing whether the interviews in this case                                                                                                                                                                                                                                                                                                                                                                                          



met the foundational requirements of Rule 801(d)(3)(F) and (H).                                                                                                                                                                                                                                                                                                                       



                                                                             Compare   Davison v.                                                                                                        State,   282 P.3d 1262,                                                                                                                 1269-1270   (Alaska 2012),   



where   our   supreme   court   held   that   a   child's   statements   made   during   a   medical  



 examination were not                                                                                                          admissible under Evidence Rule 803(4) (the hearsay exception                                                                                                                                                                                                                                                            



 for statements made for medical diagnosis or treatment) because the purpose of the                                                                                                                                                                                                                                                                                                                                                                                                        



 examination appeared to be primarily forensic rather than medical.                                                                                                                                                                                                                                                                                                                           The supreme court                                                                  



noted that (1) a state trooper arranged for the examination, (2) the trooper met the child                                                                                                                                                                                                                                                                                                                                                                                        



 and her mother at the airport and drove them to the hospital for the exam, (3) the trooper                                                                                                                                                                                                                                                                                                                                                                          



 and a women's advocate were present during the exam, and (4) the trooper took an active                                                                                                                                                                                                                                                                                                                                                                                      



role in questioning the child, and prompted some of the child's responses.                                                                                                                                                                                                                                                                                                                                                            Ibid.  



                                                                             A final word on this topic:                                                                                                                               As we noted earlier, the State's case against                                                                                                                                                                                 



Augustine rested almost exclusively on the children's out-of-court statements, and the                                                                                                                                                                                                                                                                                                                                                                                                      



video-recorded interviews conducted by Investigator Howell were the centerpiece of the                                                                                                                                                                                                                                                                                                                                                                                                       



 State's case.                                                             For this reason, if the                                                                                                                   trial judge concludes that the State has failed to                                                                                                                                                                                                                           



 establish    the    required    foundation                                                                                                                                                                               under    Evidence    Rule    801(d)(3),    Augustine's  



 convictions must be reversed.                                                                                                                                              



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----------------------- Page 26-----------------------

                                          The evidence presented at Augustine's trial was sufficient to support his                                                                                                                                                                                                                                                                                                                                                 

                                         conviction for sexual penetration of M.Y., but not his conviction for sexual                                                                                                                                                                                                                                                                                                                            

                                       penetration of T.Y.                                                                     



                                                                                The jury found Augustine guilty of two counts of first-degree sexual abuse                                                                                                                                                                                                                                                                                                                                   



  of a minor (for engaging in acts of sexual penetration with M.Y. and T.Y.) and two                                                                                                                                                                                                                                                                                                                                                                                                                 



  counts of second-degree sexual abuse of a minor (for engaging in acts of sexual contact                                                                                                                                                                                                                                                                                                                                                                                          



 with the two girls).                                                                                              



                                                                                On   appeal,   Augustine   argues   that   even   if   the   video   interviews   of   the  



  children were properly admitted at his trial, the State's evidence was nevertheless legally                                                                                                                                                                                                                                                                                                                                                                                           



  insufficient to support the jury's verdicts on the two first-degree sexual abuse charges                                                                                                                                                                                                                                                                                                                                                                                     



 -  the charges alleging sexual penetration.                                                                                                                                                                                                              



                                                                                Augustine points out that, during her out-of-court interviews, T.Y. never                                                                                                                                                                                                                                                                                                                                  



  stated that Augustine's finger went inside her.                                                                                                                                                                                                                         Indeed, T.Y. expressly denied that digital                                                                                                                                                                       



 penetration had occurred when she testified at the grand jury.                                                                                                                                                                                                                                                                                                             



                                                                                Augustine concedes that there was some evidence to support a finding of                                                                                                                                                                                                                                                                                                                                                          



  sexual penetration                                                                                           with   respect   to   M.Y.,   but   he   argues   that   this   evidence   was   so  



  insubstantial that it could not support a finding of guilt beyond a reasonable doubt.                                                                                                                                                                                                                                                                                                                                                                                                               



                                                                                All of the State's evidence pertaining to sexual penetration was contained                                                                                                                                                                                                                                                                                                           



  in the video recordings of Investigator Howell's pre-trial interviews of the two girls.                                                                                                                                                                                                                                                                                                                                                                                                         The  



  question on appeal is whether, viewing these videos (and the reasonable inferences to be                                                                                                                                                                                                                                                                                                                                                                                                                     



  drawn from them) in the light most favorable to upholding the jury's verdicts, reasonable                                                                                                                                                                                                                                                                                                                                                                    



jurors could conclude that the State had proved its allegations beyond a reasonable                                                                                                                                                                                                                                                                                                                                                                    



                                          8  

  doubt.  



                     8                  Moore v. State                                                                        , 298 P.3d 209, 217 (Alaska App. 2013).                                                                                                                                                                                           



                                                                                                                                                                                                                                               -  26 -                                                                                                                                                                                                                                              2464
  


----------------------- Page 27-----------------------

                                                The evidence of sexual penetration regarding M.Y.                                                                                                                                                                                                                                                                                     



                                                                                              During M.Y.'s first interview with Investigator Howell, M.Y. stated that                                                                                                                                                                                                                                                                                                                                                                                                                            



Augustine   had   put   his   hand   "underneath   [her]   panties",   and   she   answered   in   the  



 affirmative when Howell asked her whether Augustine's hand went inside her "tushy".                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 This evidence,                                                                                            if believed,                                                                            was   sufficient to support a finding of sexual penetration                                                                                                                                                                                                                                                                                



beyond a reasonable doubt.                                                                                                                                                                         



                                                The evidence of sexual penetration regarding T.Y.                                                                                                                                                                                                                                                                                     



                                                                                               To evaluate whether the State's evidence was sufficient to establish a sexual                                                                                                                                                                                                                                                                                                                                                                                                



penetration of T.Y., this Court reviewed the video recording of Investigator Howell's                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 interview with T.Y. - the video that was played for the jury at Augustine's trial (Trial                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



Exhibit No. 3).                                                                                             Based on our review of this video, we have inserted bracketed text at                                                                                                                                                                                                                                                                                                                                                                                                                              



various places in the transcript to explain what T.Y. was doing, or how she was acting,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



when she gave her responses to Howell's questions.                                                                                                                                                                                                                                                  



                                                                                              Early in the interview, T.Y. stated that Augustine had touched her "butt"                                                                                                                                                                                                                                                                                                                                                                                                            



 (i.e., her genitals).                                                                                                                Later in the interview (at two points), Howell asked T.Y. if it hurt                                                                                                                                                                                                                                                                                                                                                                                      



when Augustine touched her "butt" with his finger; both times, T.Y. answered, "Yeah."                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                              But when Howell asked T.Y. whether Augustine ever put his finger inside                                                                                                                                                                                                                                                                                                                                                                                                                



her body, T.Y. responded with a series of confusing, semi-coherent answers - answers                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



that ultimately led Howell to abandon this line of questioning.                                                                                                                                                                                                                                                                                                                                                                       Because T.Y. never gave                                                                                                                                



 a coherent answer to Howell's questions about sexual penetration, we conclude that the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 State's evidence was insufficient to convince reasonable jurors that the State had proved                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



this element beyond a reasonable doubt.                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                                                            -  27 -                                                                                                                                                                                                                                                                                             2464
  


----------------------- Page 28-----------------------

                                                             (a)  A more detailed look at Investigator Howell's interview with T.Y.                                                                                                                                                                                                                



                                                            The video of the interview shows that Investigator Howell and T.Y. sat                                                                                                                                                                                                                                                   



across a table from each other during the interview.                                                                                                                                                                                               T.Y.   was   sometimes visually   



focused on Howell, but T.Y. often turned her attention away from Howell (even while                                                                                                                                                                                                                                                                                       



Howell was in the middle of asking her questions), either to use a spoon to eat noodles                                                                                                                                                                                                                                                                         



from a large cup, or to pick up drawing materials from the table and make drawings on                                                                                                                                                                                                                                                                                                  



the pad of paper in front of her.                                                                                                                



                                                            About   halfway   through   the   interview,   just   before   the   segment   of   the  



interview that the State relies on as its proof of penetration, Investigator Howell spent                                                                                                                                                                                                                                                                                 



several minutes                                                          asking T.Y.                                                to   identify   parts   of   the   body,   using diagrams                                                                                                                                                               that   the  



investigator placed in front of T.Y. on the table.                                                                                                                                                                 Here is the portion of the conversation                                                                               



where Investigator Howell began to ask substantive questions:                                                                                                                                                                                                                         



                                                              

                                                                                                                                                                                                                                                                   

                                                                                         Inv. Howell :  ...  And this [part of the body]?  



                                                                                                                                                                                                                                                 

                                                                                          T.Y.:  Arm.  [misidentifying a leg]  



                                                                                         Howell :    This part?                                                                     [pointing to the same part again]                                                                                                                     



                                                                                          T.Y.:    I mean, leg.                                                             



                                                                                         Howell : Leg.                                                  [And] what do you call that?                                                                                                          [pointing  

                                                            to another part of the diagram]                                                                                                            



                                                                                          T.Y.:    Foot.   



                                                                                         Howell :    Foot.    All right.                                                                                  See, I help - I understand                                             

                                                            you a little bit more, 'cause when you said your grandpa took                                                                                                                                                                                          

                                                            your - tell me if I'm wrong, okay?                                                                                                                               You - Did you tell me                                                                        

                                                            that your grandpa took your hand and made you touch his                                                                                                                                                                                                      

                                                            elephant butt? [                                                 i.e., his male genitals]                                                                                



                                                                                                                                                                                     -  28 -                                                                                                                                                                                  2464
  


----------------------- Page 29-----------------------

                    T.Y.:    No.   



                   Howell :    You didn't tell me that?                                                            Tell - tell me what                         

happened.   If you want to point, you can.                                                                                 But will you tell                        

me again what you said?                                                  



                    T.Y.:    I just said.                            



                   Howell :    'Cause I don't remember.                                                                     I must - Thank                 

you for telling me I got it wrong.                                                              



                    T.Y.:    You said -                                       [pause;   T.Y.   turns away from                                                 

Howell]    Can I color?                                              [This was said in a higher pitched                                                 

voice, as in "Can I color now instead?"]                                               



                   Howell :    Can you color?                                               



                    T.Y.:    Yeah.   



                   Howell :    Yeah.    What do you want to - what - you                                                                                          

mean color over there [on the pad of drawing paper mounted                                                                                          

on the wall]?                         Or color right here [on the pad in front of you]?                                                                                        

I can give you some more paper.                                                                  



                    T.Y.:    Color right here.                        



                   Howell :    Okay.    Yeah, you bet.                                                              Go for it.                     You can   

color.  



                                                                                                                                                                        

                    T.Y.: With these.  [T.Y. picks up a box of markers or  

                                                   

drawing pencils.]  

  

                                                                                                                                                              

                   Howell :  Want to use those?  We're gonna talk while  

                                                                                                                                                                 

you color, though, okay?  So - 'cause I want to make sure  

                                                                                                                                                        

I understand just - I have some questions for you.  



                                                                              -  29 -                                                                                                                 2464
  


----------------------- Page 30-----------------------

                                                            At this point in the interview, Investigator Howell asked T.Y. a series of                                                                                                                                                                                                                                                    



questions designed to elicit the girl's statements regarding potential acts of sexual contact                                                                                                                                                                                                                                                                       



and sexualpenetration. T.Y.'s                                                                                                          responses were fairly comprehensible when she described  



sexual touching, but her responses were confusing when Investigator Howell tried to                                                                                                                                                                                                                                                                                                        



elicit statements from T.Y. about sexual penetration.                                                                                                                                                                                       Throughout the following portion                                                                                         



of the interview, T.Y. was fidgeting with a marker in her hand:                                                                                                                                                                                                                              



                                                              

                                                                                          Howell :    So what - What did                                                                                                                 you tell me ... about                                                 

                                                            your grandpa?                                                       You said you didn't                                                                                   - you didn't like it                                                                       

                                                            when your grandpa ...                                                                                



                                                                                           T.Y.: Well, he likes to touch my elephant butt. [Again,                                                                                                                                                      

                                                            this was T.Y.'s name for the male genitals.]                                                                                                                                                            



                                                                                          Howell :    He likes to touch                                                                                         your  elephant butt?                                                                        



                                                                                           T.Y.:    He - he likes to touch my butt.                                                                                                                                      



                                                                                          Howell :    He likes to touch your butt.                                                                                                                                  Will you show                               

                                                            me on this picture which - what you mean by that?                                                                                                                                                                                                What  

                                                            part of your body does he touch?                                                                                                                        



                                                                                           [T.Y.  points to the diagram of the body that is on the                                                                                                                                                                        

                                                            table in front of Howell.]                                              



                                                                                          Howell :    That part?                                                                       [T.Y. then points to a different                                                                     

                                                            portion of                                      the   diagram.]   And that part?                                                                                                            Okay.   When he   

                                                            touches this part of your body, does he - what does he touch                                                                                                                                                                                        

                                                            it with?                           



                                                                                           T.Y.:    With his finger.                                                                         



                                                                                          Howell :    With his finger?                                                                                       Does it hurt?      



                                                                                           T.Y.:    Yeah.   



                                                                                                                                                                                     -  30 -                                                                                                                                                                                    2464
  


----------------------- Page 31-----------------------

                           Howell :    Does the - does he put his finger inside of                                                                                                                                                            

your body, [or] outside of your body, or something else?                                                                                                                                                                                    



                            T.Y.:    He put something else in my body.                                                                                                                                 



                           Howell :    He put something else in your body?                                                                                                                                                 



                            T.Y.:    Yeah, and so - so (indiscernible) wipe it off.                                                                                                                                                                 



                           Howell :    Okay, he - he put - What else did he put                                                                                                                                                          

inside your body that you wiped off?                                                                                                                       



                            T.Y.:    He put a diaper in my body.                                                                                                               [T.Y. picks up a                                                   

 second marker with her other hand.]                                                                                                                      



                            Howell:     He   put   a   diaper   in   your   body?     I   don't  

understand.   Will you help me understand?                                                                                     



                            T.Y.: Yes. [T.Y. starts rolling this second marker back                                                                                                                                                  

and forth across the pad of paper in front of her.]                                                                                                                                                           



                           Howell :    Okay.    What - what do you mean by that?                                                                                                                                                                          



                            T.Y.: [My grandpa] put the diaper on me. [T.Y. begins                                                                                                                                             

picking up the markers in front of her.]                                                                                                                            



                           Howell :    He put a diaper on you?                                                                                                         



                            T.Y.:    Yeah.  



                           Howell : Okay.                                                    Did - did something go inside of this                                                                                                       

part of your body?                                                               



                            T.Y.:    Yes.    [T.Y. puts the second marker down.]                                                                                                                          



                           Howell :    What went inside of this part of your body?                                                                                                                                                                        



                                                                                                                -  31 -                                                                                                                                                                     2464
  


----------------------- Page 32-----------------------

                                                                                                   T.Y.:    Food.    



                                                                                                  Howell :    Food went inside?                                                                                                              [Using the first marker,                                                         

                                                                  T.Y.   begins drawing a large circle on the pad of paper in                                                                                                                                                                                                                             

                                                                  front of her.]                                                  I see.                          What are you gonna draw a picture of?                                                                                                                                                                



                                                                                                   T.Y.:    Earth.   



                                                                                                  Howell :    Earth?    What's gonna be inside the Earth?                                                                                                                                                                                                     



                                                                                                   T.Y.:    Planets.   



                                                                                                  Howell :    Planets.    Are you gonna draw your house?                                                                                                                                                                                                         



                                                                                                   T.Y.: Yes, like some - like - spaceship coming to it.                                                                                                                                                                                                    



                                                                 After T.Y. gave these responses, Howell pursued the interview for another                                                                                                                                                                                                                                                       



  18 minutes - but during these 18 minutes, Howell never asked T.Y. another question                                                                                                                                                                                                                                                                                                        



to clarify the issue of sexual penetration.                                                                                                                                                            



                                                                  (b)   Why we conclude that this evidence is insufficient to establish                                                                                                                                                                                                                  

                                                penetration beyond a reasonable doubt                                                                                                                                   



                                                                 At trial,                               when the prosecutor delivered her summation to the jury,                                                                                                                                                                                                                                                   she  



argued   that   T.Y.'s   responses   to   Howell (the                                                                                                                                                                               responses   we   have   just   quoted)   were  



 sufficient   to   establish   that   Augustine   sexually   penetrated   T.Y.      Specifically,   the  



prosecutor asserted that the element of penetration was established by T.Y.'s statement                                                                                                                                                                                                                                                                                               



that it hurt her when Augustine touched her genitals.                                                                                                                                                                                                            



                                                                  But in her argument to the jury, the prosecutor mischaracterized T.Y.'s                                                                                                                                                                                                                                                           



 statement on this subject:                                                                                                  the prosecutor told the jurors that T.Y. had said that it hurt                                                                                                                                                                                                               



when Augustine put his finger inside her                                                                                                                                                               - and the prosecutor suggested that T.Y. felt                                                                                                                                                                  



                                                                                                                                                                                                     -  32 -                                                                                                                                                                                                    2464
  


----------------------- Page 33-----------------------

this   pain   because   Augustine's   finger   was   pressing   against   her   hymenal opening (a                                                                                                                                                                                                                                                                                                                                                                                                                        



 structure at the entrance to the vaginal canal).                                                                                                                                                                                                                          In fact, T.Y. never said that Augustine put                                                                                                                                                                                               



his finger - or anything else - inside her body.                                                                                                                                                                                                                                                       



                                                                                 On appeal, the State does not repeat the prosecutor's mistaken assertion.                                                                                                                                                                                                                                                                                                                                                                                   



Instead,   the   State simply argues that, because T.Y. said that it hurt when Augustine                                                                                                                                                                                                                                                                                                                                                                                    



touched her, the jurors could reasonably infer that this touching was internal rather than                                                                                                                                                                                                                                                                                                                                                                                                                    



external.      



                                                                                 But given T.Y.'s answers as a whole, the State's suggested inference is no                                                                                                                                                                                                                                                                                                                                                               



more than speculative.                                                                                                                    



                                                                                 Over the entire course of the interview (which lasted nearly 40 minutes),                                                                                                                                                                                                                                                                                                                      



T.Y.  never said that Augustine penetrated her - even though Investigator Howell asked                                                                                                                                                                                                                                                                                                                                                                                                                



T.Y.  a series of questions that were obviously designed to elicit this information.                                                                                                                                                                                                                                                                                                                                                                                                         T.Y.'s  



answers to Howell's inquiries on this point were so incomprehensible that Howell finally                                                                                                                                                                                                                                                                                                                                                                                                            



gave up - never returning to this subject even though the interview lasted for another                                                                                                                                                                                                                                                                                                                                                                                                     



  18 minutes.                                                            



                                                                                 The question is whether the State's evidence, if believed, was sufficient to                                                                                                                                                                                                                                                                                                                                                                 



convince reasonable jurors that the State had proved its allegation of penetration beyond                                                                                                                                                                                                                                                                                                                                                                                                   



a reasonable doubt.                                                                                                     



                                                                                 Normally,   if the jury finds that the State's evidence is credible,                                                                                                                                                                                                                                                                                                                                            it   will  



inevitably follow that the jury could reasonably conclude that the State had proved its                                                                                                                                                                                                                                                                                                                                                                                                                                   



case beyond a reasonable doubt.                                                                                                                                                                    But there are occasional cases where, even if the jury                                                                                                                                                                                                                                                       



 finds   the   State's   evidence   credible,   that   evidence   is   still so                                                                                                                                                                                                                                                                                                        nebulous,   confused,   or  



 speculative that it is not sufficient to support a reasonable conclusion that the government                                                                                                                                                                                                                                                                                                                                                                     



has proved the defendant's guilt beyond a reasonable doubt.                                                                                                                                                                                                                                                                                                                 



                                                                                 For instance, in                                                                              People v. Trevino                                                                                               , 704 P.2d 719, 217 Cal.Rptr. 652 (Cal.                                                                                                                                                                     



  1985),   the central                                                                                               issue at trial was identity,                                                                                                                                        and the government's case against the                                                                                                                                                                                      



                                                                                                                                                                                                                                                    -  33 -                                                                                                                                                                                                                                                    2464
  


----------------------- Page 34-----------------------

 defendant rested on "[a] solitary fingerprint of unknown vintage", coupled with "highly                                                                                                                                                                                                                                                                                                                                                                                                                                    



 speculative and equivocal identification testimony".                                                                                                                                                                                                                                                                                  Id. , 704 P.2d at 737; 217 Cal.Rptr.                                                                                                                                  



 at 670.                                       The California Supreme Court declared that this evidence was not sufficient to                                                                                                                                                                                                                                                                                                                                                                                                                               



warrant a reasonable juror in concluding that the defendant's                                                                                                                                                                                                                                                                                                                                                           guilt had been proved                                                                             



beyond a reasonable doubt - and the court therefore ruled that the defendant was                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 entitled to a judgement of acquittal.                                                                                                                                                                                              Ibid.   



                                                                                       Similarly, in                                                              People v. Giuliano                                                                                                         , 482 N.E.2d 557, 492 N.Y.S.2d 939 (N.Y.                                                                                                                                                                                                



  1985), the New York Court of Appeals concluded that, in order to return a guilty verdict,                                                                                                                                                                                                                                                                                                                                                                                                                             



 "a trier of fact would have had to engage in speculation, draw unwarranted conclusions                                                                                                                                                                                                                                                                                                                                                                                                        



based on probabilities of low degree, and leap logical gaps in the evidence."                                                                                                                                                                                                                                                                                                                                                                                                                                 Id. , 482   



N.E.2d at 560, 492 N.Y.S.2d at 942.                                                                                                                                                                                                          The court concluded that "no rational trier of fact                                                                                                                                                                                                                                                 



 could have found that [the] elements of the crime were established beyond a reasonable                                                                                                                                                                                                                                                                                                                                                                                                      



 doubt," and the court vacated the defendant's conviction.                                                                                                                                                                                                                                                                                                                        Ibid.   



                                                                                      We reach the same conclusion here. We presume that the jury found T.Y.'s                                                                                                                                                                                                                                                                                                                                                                  



 out-of-court statements to be fully credible,                                                                                                                                                                                                                                                         and we acknowledge that the jury was                                                                                                                                                                                                   



 entitled to interpret T.Y.'s statements in light of the evidence that Augustine sexually                                                                                                                                                                                                                                                                                                                                                                                                                          



penetrated her sister, M.Y. (evidence that                                                                                                                                                                                                                             was  legally sufficient to establish penetration).                                                                                                                                                                                                                                                    



                                                                                      Nevertheless, even when viewed in the light most favorable to the verdict,                                                                                                                                                                                                                                                                                                                                                          



the evidence that Augustine penetrated T.Y. remains so speculative and equivocal that                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 it is legally insufficient to support a finding of sexual penetration beyond a reasonable                                                                                                                                                                                                                                                                                                                                                                                                



 doubt.    



                                                                                      We therefore reverse Augustine's conviction for first-degree sexual abuse                                                                                                                                                                                                                                                                                                                                                                      



 of a minor involving T.Y.                                                                                                                                         (We uphold Augustine's conviction for second-degree sexual                                                                                                                                                                                                                                                                                                     



 abuse   of   a   minor   involving T.Y.,                                                                                                                                                                                        because   that   conviction   requires   proof   of   sexual  



 contact, not sexual penetration.)                                                                                                                                                                             



                                                                                                                                                                                                                                                                   -  34 -                                                                                                                                                                                                                                                                    2464
  


----------------------- Page 35-----------------------

              Augustine's sentence must be vacated                             



                            Augustine was found guilty of two counts of first-degree sexual abuse of                                                                               



a minor (for acts of sexual penetration) and two counts of second-degree sexual abuse                                                                                      



of   a   minor   (for   acts   of   sexual   contact).     Because   of   his   two   prior   sexual   felony  



convictions, Augustine faced a presumptive                                                     term of 99 years' imprisonment on each                                        

              9   The superior court imposed a 99-year sentence on each of the four counts, and  

count.                                                                                                                                                                          



the court ordered these sentences to run consecutively, for a composite term of 396 years.  

                                                                                                                                                                           



                            Both Augustine and the State agree that the sentencing judge imposed this  

                                                                                                                                                                                



sentence  based  on  a  misunderstanding of  the  applicable  law  governing consecutive  

                                                                                                                                                              



versus concurrent sentences.  The judge mistakenly thought that Augustine's sentences  

                                                                                                                                                                   



had to be totally consecutive.  In fact, under AS 12.55.127(c)(2)(E) and (F), the majority  

                                                                                                                                                                      



of Augustine's sentences could be concurrent.  

                                                                                                   



                            Augustine was being sentenced for two counts of first-degree sexual abuse  

                                                                                                                                                                            



of a minor and two counts of second-degree sexual  abuse  of  a minor.                                                                                           Under AS  

                                                                                                                                                                                



 12.55.127(c)(2), the judge was required to impose the full 99-year presumptive term for  

                                                                                                                                                                                 



one of Augustine's first-degree sexual abuse convictions.   But the statute required only  

                                                                                                                                                                              



partially consecutive sentences for Augustine's other three convictions.  

                                                                                                                                                        



                            With regard to Augustine's conviction on the other count of first-degree  

                                                                                                                                                               



sexual abuse, only one-fourth of Augustine's 99-year sentence - 24 years, 9 months -  

                                                                                                                                                                                  



had to be consecutive.  See AS 12.55.127(c)(2)(E).  And with regard to Augustine's two  

                                                                                                                                                                               



convictions for second-degree sexual abuse, only one day of these two sentences had to  

                                                                                                                                                                                   



be consecutive.  See AS 12.55.127(c)(2)(F), as interpreted in Scholes v. State, 274 P.3d  

                                                                                                                                                                             



496, 500 (Alaska App. 2012).  

                                                                 



       9      See  AS 12.55.125(i)(1)(F) and AS 12.55.125(i)(3)(E).                                                           



                                                                                     -  35 -                                                                                 2464
  


----------------------- Page 36-----------------------

                                              In other                       words,   the minimum composite sentence that Augustine could                                                                                                                                              



receive was not 396 years (as the sentencing judge mistakenly believed),                                                                                                                                                                                             but   rather  



 123 years, 9 months, and 2 days.                                                                                     



                                              Moreover, because we have reversed one of Augustine's convictions for                                                                                                                                                                             



first-degree sexual abuse, Augustine's minimum composite sentence is now 99 years and                                                                                                                                                                                                          



2 days.                    



                                              We therefore remand this case to the superior court for a re-assessment of                                                                                                                                                                            



how much of Augustine's sentences should run consecutively.                                                                                                                                                             



                        Conclusion  



                                              We conclude that the evidence supports Augustine's conviction for first- 

                                                                                                                                                                                                                                                                                          



degree sexual abuse of M.Y., but the evidence does not support Augustine's conviction  

                                                                                                                                                                                                                                                                       



for first-degree sexual abuse of T.Y., and that conviction must be reversed.                                                                                                                                                                                          



                                              With  regard  to  the  admissibility  of  the  children's  four  out-of-court  

                                                                                                                                                                                                                                                              



interviews under Evidence Rule 801(d)(3), we direct the superior court to re-assess the  

                                                                                                                                                                                                                                                                                                



admissibility of this evidence in light of our discussion in this opinion - and we direct  

                                                                                                                                                                                                                                                                                       



the court to grant Augustine a new trial if the State fails to establish the foundational  

                                                                                                                                                                                                                                                               



requirements for the admission of this evidence.  

                                                                                                                                                                       



                                              And,   as   we   have   explained,   even   if   this   evidence   remains   admissible,  



Augustine must be resentenced because the superior court was mistaken regarding the                                                                                                                                                                                                             



amount of jail time that had to be imposed consecutively.                                                                                                                                              



                                                                                                                                           -  36 -                                                                                                                                         2464
  


----------------------- Page 37-----------------------

Judge MANNHEIMER, concurring.                                                                            



                                                              I   write   separately   to   clarify   that,   despite   our   lengthy   examination   of  



Evidence Rule 801(d)(3),                                                                                                  our opinion in this case only addresses issues of statutory                                                                                                                                                                              



 interpretation   raised   by   the   text   and   legislative   history   of   the   rule.     Evidence   Rule  



 801(d)(3)   also   potentially   presents   constitutional issues                                                                                                                                                                                                      -   issues   that   we   have   not  



 addressed because they were not raised.                                                                                                                 



                                                              For   instance,   one   of   the   legislature's   primary   aims   in   enacting   Rule  



 801(d)(3) was to allow the State to prosecute sex abuse cases without calling the child                                                                                                                                                                                                                                                                                               



to the stand.                                                Rule 801(d)(3) allows the State to present its case through hearsay                                                                                                                                                                                                                                                                -  



primarily, through the recording of the child's pre-trial interview.                                                                                                                                                                                                                                    The defense attorney                                           



 can still call the child to the stand - but,                                                                                                                                                         in such cases, the child's testimony would                                                                                                                               



begin   with   the   defense   attorney's   cross-examination.     (This   is   what   happened   with  



M.Y.'s testimony in Augustine's case.)                                                                                                                                               



                                                              As   the   lead   opinion   explains,   Evidence   Rule   801(d)(3)   was   crafted   to  



 address a very real problem:                                                                                                                   in prosecutions for sexual abuse,                                                                                                                                 our criminal justice                                        



 system has traditionally required young children to repeatedly describe their experience                                                                                                                                                                                                                                                                   



to adults who are strangers to them, and to do so in unfamiliar and often uncomfortable                                                                                                                                                                                                                                                   



 environments.    



                                                              But the solution                                                        chosen by the                                                    legislature -to                                                        exempt the child from                                                                                direct  



 examination   if   the   child's   pre-trial   interview   meets   the   criteria   specified   in   Rule  



 801(d)(3) - has been declared unconstitutional by at least one court: the Supreme Court                                                                                                                                                                                                                                                                                            



 of Washington has ruled that a defendant's right of confrontation is violated when the                                                                                                                                                                                                                                                                                                       



                                                                                                                                                                                                             1  

 State litigates a criminal case in this manner.                                                                                                                                                                  



                1              See In re Personal Restraint of Grasso                                                                                                                                    , 84 P.3d 859, 863, 868 (Wash. 2004);                                                                                                                              State v.   



Rohrich , 939 P.2d 697, 702-03 (Wash. 1997).                                                                                                                                                                 



                                                                                                                                                                                          -  37 -                                                                                                                                                                                        2464
  


----------------------- Page 38-----------------------

                                                                                 In addition, our decision in this case does not address a separate procedural                                                                                                                                                                                                                                                                                                           



issue that has constitutionalovertones: What                                                                                                                                                                                                                            is the State's burden of proof when it seeks  



to establish the foundational requirements of Evidence Rule 801(d)(3)?                                                                                                                                                                                                                                                                                                  



                                                                                 In  Reutter v. State                                                                                      , 886 P.2d 1298 (Alaska App. 1994), this Court addressed                                                                                                                                                                                                                           



the constitutionality of AS 12.45.046(a)(2), a statute that allows a child victim in a sexual                                                                                                                                                                                                                                                                                                                                                                                              



abuse prosecution to testify via closed-circuit television or through one-way mirrors -                                                                                                                                                                                                                                                                                                                                                                                                                                 



in other words, outside the physicalpresence of the defendant -                                                                                                                                                                                                                                                                                                                            "if the court determines                                                   



that [taking this] testimony ... under normal court procedures would result in the child's                                                                                                                                                                                                                                                                                                                                                                                                       



inability to effectively communicate."                                                                                                                                                                                              



                                                                                 In  Reutter, this Court held that this procedure is constitutional, but only if                                                                                                                                                                                                                                                                                                                                                               



the government meets the foundational requirements established by the United States                                                                                                                                                                                                                                                                                                                                                                                                               



 Supreme Court in                                                                                         Maryland v. Craig                                                                                                     , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666                                                                                                                                                                                                                                  



                                               2  

(1990).    



                                                                                 This ruling in turn raised another question:  What is the standard of proof  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



that  applies  when  the  government  seeks  to  establish  the  foundational requirements  

                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 specified in Craig?  

                                                                                                                      



                    2                    The  Craig  decision, 497 U.S. at 855-56, 110 S.Ct. at 3169, requires the government                                                                                                                                                                                                                                                                                                                                        



to prove   



                     [that the] use of the ... closed circuit television procedure is necessary to protect the                                                                                                                                                                                                                                                                                                                                                                                    

                    welfare of the particular child witness who seeks to testify.                                                                                                                                                                                                                                                                                     The trial court must also                                                                                              

                     find that the child witness would be traumatized, not by the courtroom generally, but                                                                                                                                                                                                                                                                                                                                                                                        

                    by the presence of the defendant.                                                                                                                                                             ...   In other words, if the state interest were merely                                                                                                                                                                                                    

                    the interest in protecting child witnesses from courtroom trauma generally, denial of                                                                                                                                                                                                                                                                                                                                                                                                

                     face-to-face confrontation would be unnecessary because the child could be permitted                                                                                                                                                                                                                                                                                                                                                     

                    to testify in less intimidating surroundings, albeit with the defendant present.                                                                                                                                                                                                                                                                                                                                                                   Finally,  

                    the trial court must find that the emotional distress suffered by the child witness in the                                                                                                                                                                                                                                                                                                                                                                                     

                    presence of the defendant is more than                                                                                                                                                                                         de minimis                                                         ,  i.e., more than mere nervousness                                                                                       

                    or excitement or some reluctance to testify.                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                   -  38 -                                                                                                                                                                                                                                                    2464
  


----------------------- Page 39-----------------------

                                                                              In  Reutter, this Court rejected a "preponderance of the evidence" standard                                                                                                                                                                                                                                                                                                            



 of proof.                                           We instead held that the government must prove its foundational facts by clear                                                                                                                                                                                                                                                                                                                                                       



 and convincing evidence.                                                                                                                             We reached this conclusion because the statute authorizes a                                                                                                                                                                                                                                                                                             



 departure from the defendant's normal right of face-to-face confrontation:                                                                                                                                                                                                                                                                                                                                                                    



                                                                                

                                                                               Given the constitution's express protection of confrontation                                                                                                                                                                                                               

                                                                               as an individual right of the accused, and ... [b]ecause of the                                                                                                                                                                                                                                                                        

                                                                              integral   role   confrontation   plays   in   the   adjudication    of  

                                                                              innocence and guilt, and its direct bearing on the integrity of                                                                                                                                                                                                                                                                               

                                                                               fact-finding at                                                                       trial,   ...   any   risk   of   error   in   balancing   the  

                                                                              individual   right   against   the   countervailing   public   interest  

                                                                              must fall on the side of protecting the innocent from an unjust                                                                                                                                                                                                                                                        

                                                                               conviction.   ... [T]he preponderance of the evidence standard                                                                                                                                                                                                                                          

                                                                               cannot provide such protection, and no dilution of the right                                                                                                                                                                                                                                                                  

                                                                               [of] confrontation should be permitted without an express                                                                                                                                                                                                                                                    

                                                                               finding that the requirements of AS 12.45.046 ... have been                                                                                                                                                                                                                                                                   

                                                                              met by clear and convincing evidence.                                                                                                                                



Reutter, 886 P.2d at 1307-08.                                                                                                                                                    



                                                                              It is arguable that these same considerations                                                                                                                                                                                                                              require a court to apply a                                                                                                                           



 "clear and convincing evidence" standard when evaluating the State's request to admit                                                                                                                                                                                                                                                                                                                                                                                              



 a child's out-of-court statement under Evidence Rule 801(d)(3).                                                                                                                                                                                                                                                                                                                      



                                                                              I   mention   these   two   constitutional   issues,   not   to   express   any   opinion  



regarding them, but only to clarify that our decision in this case should not be read as                                                                                                                                                                                                                                                                                                                                                                                                                



 addressing them in any manner.                                                                                                                                                            



                                                                                                                                                                                                                                           -  39 -                                                                                                                                                                                                                                          2464
  

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